INDEX
A. General Terms and Conditions
This contract is concluded between Seven Minds SAS (the “Provider”) and the natural or legal person that signs and is duly identified in the document called “Client Linking Format” or “Format” (which includes among others the Description of the Services, prices and payment conditions) (the “Customer” as defined below). Each of the parts indicated here will be referred to hereinafter as the “Parties” in their plural sense and as the “Part” in their singular sense. This contract is made up of the following documents: (i) the Format; (ii) these General Terms and Conditions; (iii) Acceptable Use Policies (the “AUPs”); (iv) the Service Level Agreement (or “SLA”); and (v) the Privacy Policies (the “Policies”). Terms and conditions of the service
This Agreement will enter into force from the date on which the Client signs the Format or since it is processed via the Internet (the “Effective Date”).
1. DEFINITIONS
The terms defined here and used in these Terms and Conditions will have the meaning assigned here both in their singular and plural sense, the rest of the defined terms will have the meaning detailed in the rest of the documents that make up the Contract.
“Service Level Agreement” or “SLA” means the contract that includes the commitments made by the Supplier regarding the delivery and / or performance of the Services. SLAs are published at http: /7www.sevenminds.com/terminosycondiciones or at an alternative site indicated by the Provider.
“Client” means the natural or legal person that signs the Format and contracts the Services.
“Subsidiary ” means any legal entity, whatever its corporate form, that is owned by one of the Parties. For the purposes of this definition, “property” means that a Party has in its name or controls more than 50% of the share capital of a company.
“Client data”means all data, including all text, sound or image files and software or any other type of file or link provided by the Customer, its Subsidiaries or Users or provided on behalf of the Supplier through the use of the Services.
“Order” means any order for Services.
“Services” means any online service of the Supplier identified in the Format and which are contracted by the Client and where appropriate used by its Subsidiaries and / or its Users.
“Subscription” means the temporary agreement to pay and receive the use of a specific requested Service in any of its modalities Subscription in Advance and Subscription of Payment for Use as defined in Clause 4.
“Term of Term” means the duration of a Subscription.
“Privacy Policies” or “Policies” means the guidelines on data protection and privacy that the Provider follows and applies in the provision of the Services.
“Use Policies or“ AUPs ” means the rights and obligations of use of the Services published and available at https://sevenminds.wpengine.com/terminosycondiciones or on any other web page that the Provider indicates and makes available to Clients .
“Username”means the person or individuals who access and use the Services; and which are employees, contractors, subcontractors or third parties authorized by the Client to access and use the Services and always having the Client contracted the Services that the Provider provides.
2. USE OF THE SERVICES
2.1 General provisions.
This Agreement governs the use of the Services by the Client, and for this the Client or the Users must activate the Services before proceeding to use, always subject to the necessary hardware requirements for the proper use of the Services.
2.2 License
Through this Agreement, the Provider grants the Client (and therefore the Users) a non-exclusive, non-transferable, worldwide and limited right to access and use the Services in accordance with the provisions of this Agreement (the “License” ). The rights contained herein will have the following characteristics: (i) they are not perpetual unless the Supplier explicitly indicates otherwise; and (ii) are conditional on your continued compliance with the terms of this Agreement, including payment of the Services. The Supplier in any case reserves all rights that are not granted to the Client expressly in this Contract.
2.2.1 Confirmation of Licenses
All documents that regulate and prove their contracting and payment will be proof of the Licenses contracted by the Client, being the same but not limited to this Contract, Order confirmation, and proof of payment among others .
2.2.2 License rights are not related to the provision of physical software media. The Supplier will not provide the Client with physical supports of the Services, since the License granted by the Supplier to the Client consists of a license to use the Services in its online format.
2.2.3 Sale of Licenses
The sale, transfer to any title or any form of transmission of the licenses to be made by the Client to its Subsidiaries or any other third parties is strictly prohibited.
2.2.4 Internal Transfer of Licenses
Licenses contracted by the Client may be assigned to a User or an individual device, and may even be reallocated. Likewise, the Client may assign the Licenses to its Subsidiaries and Users according to what is established herein and in any case under his sole and total responsibility.
2.2.5 Reassignment of Licenses
Licenses may be reallocated from one device or User to another, unless stipulated below. Likewise, the Client may reassign the Licenses to its Subsidiaries and User in accordance with what is established herein and in any case under his sole and total responsibility.
2.3 SLAs
The Services will be provided in accordance with the provisions of the SLAs.
2.4 Privacy and Security
The privacy and security statements for the Services are included in the Policies and in the AUPs.
2.5 Limitations of use
The Client and, where appropriate, the User may not: (i) use reverse engineering techniques; (ii) decompile or disassemble any Service; (iii) rent, lend, resell or provide hosting services to or for third parties, except as expressly stated in the AUPs; (iv) use the same License on two or more computers simultaneously; (v) update or change
components to a previous version at different times or transmit components separately, except as indicated in the AUPs.
2.6 Software not owned by the Supplier
2.6.1 The Client is solely responsible for any software that is not owned by the Supplier that he installs or uses with the Services and therefore the Supplier will not be considered a party or be bound by contract or software agreement or license thereof, which is not owned by the Supplier.
2.6.2 In the event that the Client installs or uses any software that is not owned by the Supplier in relation to the Services, the Client will be responsible for directing and controlling the installation and use of said software in the Services through its actions .
2.6.3 In the event that the Client installs or uses any software that is not owned by the Supplier with the Services, such installation or use may not be carried out in a way that may compromise the intellectual and industrial property or technology of the Supplier or its subcontractors to obligations outside of those included in this Contract.
3. CUSTOMER RESPONSIBILITY REGARDING ITS ACCOUNTS
The Client will be responsible for: (i) protecting the confidentiality of any account including the necessary authentication information (such as username and passwords) related to the use of the Services; (ii) all activity in relation to the accounts contracted by the Client in relation to the Services, including transactions with third parties that are made through the User account (s) or associated accounts; and (iii) keep accounts and passwords confidential. In any case, the Customer must immediately inform the Provider of any possible misuse of the accounts or of any Security Incident related to the Services.
4. ORDERS, PRICES, PAYMENTS, RENEWALS AND TAXES
4.1 Subscription Types
The Supplier offers the Services under the following Subscription options:
(i) Advance Subscription: Through this subscription mode, the Client undertakes to purchase access to the Services for use during a Term and in advance. Payment of this modality may be made in advance only once or periodically during the Term.
(ii) Subscription of payment for use: Through this subscription mode, the Client undertakes to purchase and pay in advance for access to the Services for use during one month without any commitment of permanence longer than one month. Payment of this modality will be made periodically.
4.2 Orders
The orders will be made through the channels duly authorized by the Supplier or through direct sales made by the Supplier including online sales through its website.
4.2.1 For Subscriptions in Advance, the Client may increase or decrease the number of Licenses during the Term and they will expire at the end of the original Term. If the number of Licenses is reduced during a Term, then the Supplier may charge a cancellation fee for the decrease in the amount as described in Clause Five in its number two below. Each Subscription will be for a defined Term of Term and which will be selected by the Client at the time of contracting the Services according to the commercial proposals that the Provider makes.
4.2.2 The Client may place Orders for its Subsidiaries and, where appropriate, for its Users under this Agreement and grant its Subsidiaries and Users administrative rights to administer the Services, after which the Subsidiaries and Users shall submit to the provisions of this contract. Thus, when the Subsidiaries or Users acquire Licenses through the Client and through this Contract, then both the Client and the Subsidiaries and the Users will be jointly and severally liable for the Services requested.
4.3 Prices and payment
The prices and payment conditions of the Services will be those that the Supplier directly or through its authorized channels sends to the Client.
4.4 Renewal.
4.4.1 For the Advance Subscription modality, the Subscription and therefore this Contract (including the Licenses granted here) will be automatically renewed for a period similar to the Term. In case the Client decides not to renew the Subscription, then he must notify the Client in writing at least one month before the expiration date of the Term.
4.4.2 For the Payment for Use Subscription mode, renewal is unnecessary since the Client’s ability to use the Services will continue until the Services are interrupted.
4.4.3 Trial Subscriptions may not be renewed.
4.5 Taxes
The payment of any amount of money for the contracting of the Services shall be understood as free of taxes, commissions or any applicable withholding tax, and which shall be assumed by the Client.
5. TERM OF TERM, SUSPENSION AND TERMINATION
5.1 This Agreement will remain in force for the Term of Validity unless the Client terminates it in accordance with the provisions of this Clause. For the Advance Subscription modality, termination will only terminate the Client’s right to renew Subscriptions under an existing Order or to make additional new Orders under this Agreement. Termination will not affect any Subscription that is not otherwise terminated and this contract will remain in effect for such Subscription for the rest of the Term. For the Payment for Use Subscription mode, the termination will terminate the Client’s right to use the Services.
5.2 Termination of a Subscription
The Client may terminate a Subscription at any time during the Term. Once the right of termination has been executed, said termination will take effect at the end of the monthly Subscription cycle during which the Subscription ends and the Client must pay for the period prior to the effective date of termination. Specifically for Advance Subscriptions and depending on its Term, the following will apply: (i) Subscriptions for a period of one month may be terminated at any time without cost; and (ii) for Subscriptions for a period of one year, if the termination is made within the first month of the Term, then the Customer will pay the Supplier an amount corresponding to the initial thirty (30) days of the Subscription.
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Term Period stipulated as one year during the dual the Customer cancels the Services |
Percentage of the value of the Services in annual value that the Supplier must pay in case of cancellation of the Services |
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Month two at the end of month three |
40% |
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Month four at the end of month five |
60% |
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Month six at the end of month eight |
80% |
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Month nine to the end of month eleven |
90% |
6. CONFIDENTIALITY
The Client (and in each case each of the Users) declares and accepts that he will deal with everything related to the Services, including the design and execution of the Services to which he can have access only through password- protected access, thus, all documentation or material related to the Services and provided by the Supplier or any third party authorized by it, as confidential and will not be disclosed to any third party unless there is prior, written and express authorization by the Supplier.
7. GUARANTEES
7.1 Limited warranty
The Supplier guarantees the Services in accordance with the provisions of the SLA.
7.2 Limited warranty period
The limited warranty will correspond to the term of the Term.
7.3 Exclusions to the limited warranty .
This limited warranty is subject to the following limitations: (i) in any case and provided that the applicable law prescribes it, the limited warranty may not exceed the term of one (1) year counted from the beginning of the limited warranty; (ii) the limited warranty does not cover problems caused by accident, abuse or use of the Services in a manner contrary to this Agreement or to the AUPs, or caused by events beyond the reasonable control that the Supplier may have; (iii) the limited warranty does not apply to problems caused by the Customer’s breach of the minimum system requirements; and (iv) the limited warranty does not apply to Free, Trial, Preliminary or Beta Services.
7.4 Scope of the limited warranty
In the event that the Supplier does not comply with the limited warranty stipulated herein, and provided that the Customer notified the Supplier in that sense then and provided it is within the Term of the Limited Warranty, the Supplier will provide the resources identified in the SLA. In any case, the above are the only resources available to the Client for breach of the limited warranty, unless the applicable legislation requires that others be provided.
7.5 Exclusion of Other Warranties
Apart from this limited warranty, the Supplier does not provide any other express or implied warranty or condition, so that any manifestation, warranty or implied condition is excluded, including the warranties of merchantability, fitness for a specific purpose, satisfactory quality, ownership or absence of infringement. These exclusions of liability will apply unless the applicable law does not allow them.
8. DEFENSE AGAINST A CLAIM FOR INFRINGEMENT OF RIGHTS, VIOLATION OF BUSINESS SECRETS AND CLAIMS OF THIRD PARTIES
8.1 Supplier Protection Agreement
The Supplier agrees to defend the Client against any claim submitted by a third party that is not a Subsidiary, when the claim is indicate that the Services violate that third party’s mark or that it makes illicit use of the third party’s business secrets by the Client. Likewise, the Supplier undertakes to pay the amount established by an eventual adverse judgment
that is issued on a firm and definitive basis (or that is established in a transactional agreement to which the Supplier gives his consent). This Clause includes the only recourse of the Client against these claims.
8.2 Limitations on the defense obligation
The obligations of the Supplier set forth in the preceding paragraph shall not apply if the claim or the judgment is based on:
(i) Customer Data, non-Supplier software, modifications made by the Customer to the Services or materials that are provided or made available by the Customer as part of the use of the Services.
(ii) the combination of Services with services that are not owned by the Supplier, data or business process that are not from the Supplier; or damages attributable to the value of the use of a service, data or business process that are not owned by the Supplier;
(iii) the redistribution that the Client makes of the Services to third parties that are not Subsidiaries or Users, or their use for the benefit thereof;
(iv) the use that the Client makes of any brand of the Supplier without his express written consent; or your use of the Services after the Supplier notifies the Customer that you must discontinue its use due to a third party claim.
In these cases, the Customer will reimburse the Supplier for any costs or damages arising from the aforementioned actions.
8.3 Customer protection agreement
The Client will defend the Supplier and its Subsidiaries against all claims submitted by a third party that is not a Subsidiary: (i) in the sense that the Customer Data or software that is not owned by the Supplier and that it does not provide together with the Services used by the Client infringe the patent, intellectual property or trademark rights of the third party or make deliberate illicit use of the Supplier’s Business Secrets; or (ii) in relation to the use made by the Client of the Services and that violates this Contract. The Client must pay the amount established by an eventual adverse judgment that is issued on a firm and definitive basis (or that is established in a transactional agreement to which the Client gives his consent). This Clause includes the sole remedy of the Provider against these claims.
8.4 Rights and remedies in case of possible infringement of rights or violation of business secrets.
8.4.1 Supplier Services
In the event that the Supplier reasonably considers that a Service may infringe or violate the intellectual and industrial property rights of a third party, then the Supplier shall attempt to: (i) obtain for the Client the right to continue using the Services ; or (ii) modify it or replace it with equivalent functionality, so as to stop incurring the infringement and the Supplier will notify the Client to interrupt the use of the previous version of the Services. If the above options are not commercially reasonable for the Customer, then the Supplier may terminate the rights to use the Services, giving written notice to the Customer and reimbursing the amounts that the Customer paid in advance for the Unused Services.
8.4.2 Customer Data or use of Software that is not owned by the Supplier with the Services
In the event that any third party that is not a Subsidiary declares that the Customer Data or software that is not owned by the Supplier used with the Services violates the intellectual and industrial property rights of said third party, then the Supplier may request the Client to remove the allegedly infringing element. If said request is not attended by the Customer within a reasonable period of time, then the Supplier may suspend or terminate the provision of the Services with which the Customer Data or the Supplier’s software are related .
8.5 Obligations of the protected party
The Client must notify the Supplier immediately and in writing of any claim subject to the section entitled “Supplier Protection Agreement” and the Supplier must notify the Client immediately and in writing of a claim subject to the section entitled “Agreement of protection of the Client ”. The Party that invokes this right to protection must: (i) deliver to the other party the exclusive control of the defense or transactional agreement; and (ii) provide reasonable assistance in
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability
Any liability of the Parties, including its Subsidiaries as well as that of the Users which will be headed by the Client, derived from this Agreement will be limited to the sole fault and for direct damages only. Likewise, the amount of said responsibility may only be up to the amount that the Client had to pay for the Services from which that responsibility was derived during the previous twelve (12) months. In the case of Free or trial Services, the Supplier and its Affiliates will not respond for any damage unless damage or serious fault is proven and limited to the amount established above. However, these monetary limitations shall not apply to: (i) the obligations of the Parties arising from the provisions of the Clause “Defense against a claim for infringement of rights, violation of business secrets and third party claims ”; (ii) the responsibilities arising from a breach by any of the Parties of their obligations under the section entitled “Confidentiality”, unless the liability of the Supplier and / or its Affiliates and contractors that arise or relates to the Data Customer will be limited in all cases to the amount that the Customer paid for the Services that caused that responsibility during the previous twelve (12) months; and (iii) the infringement, by either Party, of intellectual property rights and unless the responsibility of the Supplier and / or its Subsidiaries and contractors that arise or are related to the Client Data will be limited in all cases to the amount that the Client paid for the Services that caused that responsibility during the twelve (12) months previous; and (iii) the infringement, by either Party, of intellectual property rights and unless the responsibility of the Supplier and / or its Subsidiaries and contractors that arise or are related to the Client Data will be limited in all cases to the amount that the Client paid for the Services that caused that responsibility during the twelve (12) months previous; and (iii) the infringement, by either Party, of intellectual property rights and Industrial of the other side. All of the above subject to the provisions of the applicable law corresponding to each case.
9.2 Exclusion of Certain Damages
To the extent permitted by applicable law, and regardless of the legal basis of the claim, neither Party nor any of its Subsidiaries or Users, will be liable for indirect, consequential, special or incidental damages or damages for loss of profit or loss. loss of income, interruption of activities or loss of business information arising in relation to this Contract, even if it was notified about the possibility of such damages or if said possibility was reasonably foreseeable. But nevertheless,
10.
10. NOTIFICATIONS
The Parties must send all notification, authorization, communication and request in relation to this Agreement by ordinary or certified mail, express mail or fax to the addresses indicated below. The notifications will be considered sent on the date that appears on the acknowledgment of receipt or on the confirmation of package or fax delivery. In any case the notifications made via electronic message will have the same validity as those made in physical format.
Customer contact information: will be those indicated in the Format Contact details Supplier:
Address: Carrera 7 74-56 Of. 808 Bogotá, Colombia Telephone: (+57) 1-7470577
Email: info@sevenminds.wpengine.com
11. INDEPENDENCE OF THE PARTIES
The Parties declare and accept that they are independent parties and independent contractors for all purposes relating to this Agreement; as well as that no type of agency, franchise, fiduciary or labor relationship is established between the Parties or any other of a similar nature.
12. WITHOUT THIRD PARTY BENEFICIARIES
This Agreement does not create any rights of third party beneficiaries in any person or entity that is not a Party to this Agreement.
13. ASSIGNMENT
The Client may not assign this Agreement unless there is express, prior and written consent issued by the Supplier. The Supplier may assign this Agreement to its Subsidiaries or other third parties prior notification to the Client.
14. SURVIVAL
If a court declares any Clause or provision of this Contract illegal, invalid or unenforceable, the rest of the Contract will remain in force and this Agreement will be modified so that the disposed disposition is effective to the maximum extent possible.
15. DISCLAIMER
The waiver of any breach of this Agreement does not constitute a waiver in case of any other breach. Any waiver must be in writing and signed by an authorized representative of the Party that will make it.
16. APPLICABLE LAW
This Agreement is governed by the applicable laws of the Republic of Colombia, except as otherwise provided in this Agreement. The Services are protected by international laws and treaties regarding intellectual and industrial property.
17. RESOLUTION OF CONFLICTS
Any action to demand compliance with this contract must be filed in the Republic of Colombia in the city of Bogotá. This choice of jurisdiction shall not prevent any of the Parties from requesting, in any relevant jurisdiction, the adoption of precautionary measures in relation to an infringement of intellectual and industrial property rights or a breach of confidentiality obligations.
18. COMPLETE AGREEMENT
This Agreement constitutes the entire contract with respect to its purpose and replaces any previous communication between the Parties thereto.
19. SUBSISTENCE
The provisions on property and license rights, prices, AUPs, restrictions on use, transfer of licenses, guarantees, export restrictions, defense against claims for infringement of rights and violation of business secrets, obligations of the Supplier and of the Client to protect each other, limitations of responsibility, confidentiality, verification of compliance, obligations for termination or expiration and the other provisions will survive the termination or expiration of this contract for a period of two (2) years counted from the moment of termination or expiration of this Agreement.
20. NO TRANSMISSION OF PROPERTY
In any case and under no circumstances, the Supplier transmits any ownership rights over any of the Customer Services or any other third party. The Supplier reserves all rights, including without limitation the license rights, which are not specifically granted in this Agreement. The Services are protected by copyright and other international laws and treaties regarding intellectual and industrial property and regulations related to trade secret.
21. FORCE MAJEURE
None of the Parties shall be liable for performance errors due to causes beyond reasonable control of the Parties (such as fires, explosions, power outages, earthquakes, floods, storms, strikes, embargoes, labor disputes, acts of civil
authority or military, wars, terrorism (including computer terrorism), natural phenomena, acts or omissions of Internet traffic operators, actions or omissions of government or regulatory bodies (including the approval of regulations or other government acts that affect the provision of the Services)). However, this Clause will not apply to your payment obligations under this Agreement.
22. UPDATES OF THE TERMS AND CONDITIONS OF THE CONTRACT
The Supplier may update the terms and conditions of all or part of the Contract at any time. The changes in the terms and conditions of all or part of the Contract that are presented on the occasion of updates or complements to the Services, whose realization is a legal requirement or that does not substantially affect the use of the Services will be of immediate application. For any other change, the use made by the Client, its Subsidiaries and the Users of the Services will be governed by this Agreement without including new updates during the Term. When the Contract is renewed for additional terms, then at this time the terms and conditions of the Contract that are in force at that time will come into force. In any case, The Supplier will notify the Client of any update (of the Services and of this Contract), which will be made with at least ten (10) calendar days before their entry into force. It will be understood that the Client accepts the updates of the terms and conditions of this Contract with the mere fact of continuing with the use of the Services and after published on the Supplier’s website the changes mentioned here or after the notification has been sent by mail electronic informing of the corresponding change.
B. Acceptable Use Policies (“AUPs”)
These AUPs are an integral part of the Contract together with the other documents that comprise it. The purpose of the AUPs is to regulate the use of the Services by the Client through Licenses granted by the Provider to the Client and other relevant issues.
1. DEFINITIONS
The terms defined here and used in these AUPs will have the meaning assigned here both in their singular and plural sense, the rest of the defined terms will have the meaning detailed in the rest of the documents that make up the Contract.
Client data means all data, including all text, sound or image files and software or any other type of file or link that the Customer, its Subsidiaries or Customers provides or provided on its behalf to the Supplier through the use of the Services.
External Clients means Clients who are not employees of the Client or the employees of its Subsidiaries or its contractors or representatives on-site or those of its Affiliates.
License means what is indicated in Clause 2.2 of the General Terms and Conditions.
Server means a physical hardware system where the software is run and the Customer Data is stored and to which the Clients connect to access the Services.
2. RIGHTS GRANTED BY THE LICENSE
Through the proper subscription of the Contract by the Client, he may access and use the Services in accordance with the provisions of these AUPs.
2.1 Updates to the terms and conditions of the License
The Supplier may update the terms and conditions of the License at any time. The changes in the terms and conditions of the License that are presented on the occasion of updates or complements to the Services, whose realization is legal requirement or that do not substantially affect the use of the Services will be of immediate application. For any other changes, the use made by the Client, its Subsidiaries and the Users of the Services will be governed by these AUPs without including new updates during the Term. When the Contract is renewed for additional terms, then at this time the
terms and conditions of the License that are in force at that time will come into force. In any case, The Supplier will notify the Client of any update (of the Services and of this Contract), which will be made with at least ten (10) calendar days before their entry into force. It will be understood that the Client accepts the updates of the terms and conditions of the License with the mere fact of continuing with the use of the Services and after published on the Supplier’s website the changes mentioned here or after the notification has been sent by mail electronic informing of the corresponding change.
2.2 Service Updates
EThe Supplier may modify the functionalities or features or update the Services at any time. After an update, some previously available features or features may change or become unavailable. In the event that after an update of the Services, some of its features or functionalities that were being used by the Client were no longer available or substantially modified, then the Client shall have the right to terminate this Agreement and cease the use of the Services, without applying the penalty set forth in Clause 5.2 of the General Terms and Conditions and provided that you exercise this right within thirty (30) calendar days following the date on which the update was made.
3. SUSPENSION OF THE SERVICES
The Supplier may suspend the Services totally or partially if: (i) the Supplier considers that the use that the Client, its Subsidiaries and / or the Users make of the Services poses a direct or indirect threat to the integrity of the Provider, network function or the use of any person of the Services; (ii) if it is reasonably necessary to prevent unauthorized access to Customer Data; (iii) to the extent necessary for compliance with applicable laws and regulations; and (iv) if the Client, its Subsidiaries and Users do not comply with the Acceptable Uses section of the Services collected below or breach the obligations set forth in other parts of this Agreement.
3.1 Terms and scope of suspension
Any suspension of the Services in accordance with what is established herein shall apply to the minimum necessary part of the Services and its term of duration shall be that which is reasonably necessary to address and, where appropriate, resolve the problems that caused the suspension.
3.2 Notification of suspension
The Supplier will notify the Customer in advance with at least five (5) calendar days prior to the date of the future suspension of the Services, except when the Supplier reasonably believes that an immediate suspension is required. In the case of non-payment of the Services, the term will be at least ten (10) calendar days.
3.3 Unilateral right to terminate the Contract
If, within thirty (30) calendar days, the Client does not solve the reasons that led to the suspension of the Services, then the Supplier may terminate the Contract and reserve the right to delete the Customer Data in accordance with the provisions of This Contract, as well as to apply the penalty set forth in Clause 5.2 of the General Terms and Conditions.
4. EXPIRATION OF THE TERM OF VALIDITY OR RESOLUTION OF THE CONTRACT
After the expiration or termination of the Contract and for a period of fifteen (15) calendar days, the Customer may contact the Supplier, who will inform him about the procedure to disable his account and delete the Customer Data. After the expiration of the retention period, the Supplier will proceed to disable the Client and Users account and delete the Client Data. Copies cached or backed up will be debugged within thirty (30) calendar days from the end of the retention period.
5. ABSENCE OF LIABILITY FOR THE ELIMINATION OF CLIENT DATA
The Client expressly accepts that except as described in these AUPs, the Supplier does not have or will have any obligation to keep, export or return to the Customer Customer Data, beyond the retention date of the Customer Data described herein. Likewise, the Client agrees that the deletion of the Client Data, in accordance with what is established herein, does not entail or entail any type of responsibility towards the Supplier.
6. AVAILABILITY OF THE SERVICES
The availability of the Services and some of their functionalities may vary according to the geographical area from which the Client accesses them, always subject to what is established by the Provider in this regard on the websitehttps://sevenminds.wpengine.com/pages/terminos-condiciones-servicio.html
7. CUSTOMER RESPONSIBILITY REGARDING ITS CUSTOMER ACCOUNTS
The Client will be solely responsible for all activities in relation to their service accounts, that of the Users and Subsidiaries they provide and the interactions with third parties that take place through of your accounts or of your associated accounts. Customer is also responsible for maintaining the confidentiality of all non-public authentication credentials associated with their Services accounts. In any case, it is the Client’s obligation to inform the Supplier immediately about any misuse of their authentication accounts or credentials, or about any Security Incident related to the Services.
8. THIRD PARTY SOFTWARE, CONTENT AND SERVICES
8.1 Third-party software, content and services provided by the Client
The Client, its Affiliates and Users may use third-party software, content or services to access the Services. In this case, the Supplier will not be responsible for any third-party content, software or services to which it may have direct or indirect access through the Services. The Client will be solely responsible for their dealings with third parties related to the Services. In the case of third-party software and that is owned by them, the license of said software will be governed by the separate terms and conditions of said software.
In this case, the Services may present failures and the Supplier does not guarantee that the Services are free of errors or that they operate without interruptions.
8.2 Third-party software and services provided by the Supplier
The Supplier may use software and services that are not owned by the Supplier for a better provision of the Services and whose use will be governed by the terms and conditions agreed between the Supplier and the third party, and which will be independent of those in force between the Client and The Supplier However, the Supplier assumes no responsibility for the software or service that is not owned by the Client. In any case, the Supplier will make its best commercial efforts so that the third-party software and services that it hires work correctly.
9. RIGHTS ACQUIRED
The Client will defend the Supplier against any claim that arises because of some aspect of the present or previous contractual relationship between the Client and any of its current or previous employees or contractors, or under any collective agreement or any applicable law, which includes, among others, claims for unjustified termination, express or implicit breach of employment contracts, or payments of benefits or wages, costs of unjustified dismissals, or costs of dismissals. In this case, the Client must pay the amount resulting from any adverse judgment that is issued on a firm and final basis (or transactional agreement that it approves). This section describes the sole resource of the Provider for such claims, The Supplier must in these cases notify the Client and in writing of any claim subject to this section. In the event of such a claim, the Supplier shall: (i) give absolute control over the defense or the transactional agreement of said claim to the Client; and (ii) provide reasonable assistance to the Client in defense of the claim. In any case, the Customer will reimburse the Supplier for reasonable expenses for such assistance.
10. ACCEPTABLE USES OF THE SERVICES
The Services may not be used by both the Client or its employees or contractors in the following ways: (i) in a manner prohibited by law, regulation, government order or decree; (ii) to infringe the rights of others to use the Services in order to attempt, by any means, access in an unauthorized manner or interrupt any service, data, account or network; (iii) to falsify any protocol or email header information (“phishing” and others of a similar nature); (iv) to send spam or distribute malicious software; (v) in a way that could cause damage or hinder the use of the Services to other Customers; or for any high-risk use (where an error or failure in the Services may cause death or serious physical injury of a person, or serious physical or environmental damage); and (vi) in general to carry out activities considered as crimes of any kind or nature.
10.1 Changes in the use of the Services by legal or regulatory mandate
The Supplier may modify or terminate the Services in any country where there is any governmental requirement or obligation, present or future, that submits the Supplier to any regulation or requirement that is generally not applicable to the commercial activities carried out in that country, present an excessive burden for the Supplier to continue operating the Services without modification and / or make the Supplier consider that these terms or the Services are incompatible with said requirement or obligation.
11. ELECTRONIC NOTIFICATIONS
The Supplier will make any notification to the Client by email to the address indicated by the Client in this Contract. The date of notifications made by email will be that of their transmission.
12. LIMITED WARRANTY
In addition to what is already stated about limited warranties in another part of this Agreement, the limited warranty will not apply to downtime or other interruptions in access to the Services, or any other measure of performance collected in the SLA. If the Supplier has subscribed with the Client other additional terms and conditions to the Services, then those terms replace the limitations available in this section.
13. COMPLIANCE WITH LAWS AND REGULATIONS
The Supplier will comply with all laws and regulations applicable to this provision of the Services, but not including the laws and regulations applicable to the Client or its sector that do not generally apply to information technology service providers. The Client will comply with each and every one of the laws and regulations applicable to its Client Data and its use of the Services, including the laws and regulations applicable to the Client or its sector.
14. DOCUMENTATION
Any person who has valid access to a computer or internal network of the Client may copy and use the documentation of the Services for internal reference purposes. Upon cancellation or termination of the Services or the Contract, such documentation must be destroyed or returned to the Supplier at its election.
15. ACTIVATION OF THE SERVICES
The Services must be activated in order to access them. For the activation of the Services, the Client must: (i) complete the Linking Form, indicating the Clients that will have access to the services, their emails and other additional information indicated in said document: and / or (ii) follow the instructions that the Provider indicates to activate the services.
The Client will be responsible for the use of the keys that have been assigned and for the activation of the products, not having to reveal the keys to third parties.
C. Privacy Policies
These privacy policies (the “Policies”) apply to all Services, and are an integral part of the Agreement.
1. Definitions
The terms defined here and used in these Policies will have the meaning assigned here both in their singular and plural sense, the rest of the defined terms will have the meaning detailed in the rest of the documents that make up the Contract.
“Client” means the natural or legal person that signs the Format and contracts the Services.
“Customer Data” means all data, including all text, sound or image files and software or any other type of file or link that the Customer, its Subsidiaries or Customers provides or provided on its behalf to the Supplier through the Use of the Services.
“Username”means the person or individuals who access and use the Services; and which are employees, contractors, subcontractors or third parties authorized by the Client to access and use the Services and always having the Client contracted the Services that the Provider provides.
2. Privacy
he Supplier declares that it complies with all the regulatory requirements on data protection and privacy applicable to the provision of services such as the Services contained herein, and that the laws of both the United States territory and the Republic of Colombia require. In turn, the Services are provided through third parties which declare that they comply with the previous laws in relation to the regulations applicable within the United States of America. Consequently, the
Supplier will not be responsible for complying with any privacy law applicable to special categories of data or to the Client or its economic sector or data protection that is not generally applicable to information technology service providers.
2.2 Customer Data
The Supplier will process Customer Data in accordance with the provisions of this document, (except for the exceptions contained in this Contract) and declares that: (i) it will not acquire any type of right over the Customer Data; and (ii) you will not use or disclose Customer Data for any purpose other than those indicated in these Policies.
2.3 Uses and destination of Customer Data by the Supplier
The Supplier will use and allocate the Customer Data according to the following terms:
2.3.1 The Client Data will be used only to provide the Client with the Services, including actions aimed at improving the service or preventing-solving problems that may occur in the provision of the Services.
2.3.2 The Supplier will only reveal Customer Data when legal or regulatory provisions, as well as competent public entities expressly demand it. In any case, the Supplier will make its best efforts to communicate this fact to the Client within the shortest possible time and even redirect the public entity directly to the Client.
2.3.3 Upon expiration of this Contract or with the termination of the obligation to provide the Services, the Supplier will make available to the Customer and for a period of fifteen (15) calendar days the necessary means for the Customer to withdraw Customer Data . Once the period indicated here has expired, the Supplier will proceed to delete and destroy the Client Data, after which they will not be accessible to the Client or any third party.
2.3.4 The Provider will not process or respond to requests of any nature from Users with respect to Customer Data without the prior, express and written consent of the Customer, except for those cases expressly included in the applicable laws. In any case, the Supplier will make its best efforts to communicate this fact to the Client within the shortest possible time.
2.3.5 The Supplier will have the capacity of Data Processor and therefore, will process the Client Data on behalf of the Client. The Supplier may transfer, store and process Customer Data in the United States of America, the Republic of Colombia and in the territory where the Client accesses the Services, as well as in any other country in which the Supplier, its Subsidiaries or subcontractors They maintain facilities.
2.3.6 Supplier personnel will not have direct access and will not process Customer Data without prior express and written authorization issued by the Customer. In any case, the Supplier’s staff is obliged to maintain the confidentiality of the Customer Data for the duration of their employment contract and for two (2) more years after its termination.
2.3.7The Supplier may subcontract other companies to provide certain services necessary for the adequate provision of the Services and as support to the Client. Therefore, the Client authorizes the Supplier to transfer Client Data to the subcontractors and that said Supplier subcontractors to access Client Data only in order to provide services necessary for the provision of the Services, and in any case the subcontractors have the prohibition of using the Customer Data for different purposes than those of the provision of the Services. Moreover, subcontractors have and will have the same and the same level of obligations as the Supplier with respect to Customer Data in accordance with the terms and conditions set out in these Policies. The foregoing will be legally enforceable to subcontractors in accordance with the agreements signed or signed between the subcontractors and the Supplier in that regard. The Supplier will be responsible for the use that subcontractors give to Customer Data. The Supplier in no case, with the exceptions set out above or whenever there is express consent of the Client, will transfer personal data of the Client to any third parties.
3. Obligations of the Client
3.1 The Client as well as its Subsidiaries and Users must comply with each and every one of the applicable legal requirements on privacy, data protection and confidentiality of communications related to the use of the Services.
3.2 In the event that the Client provides personal data so that its Subsidiaries or Users access the Services, both they and the Client give their express permission to the Supplier so that he or she can contact any of them for the purpose of improving the provision of the Services or any other matter related to the Services. In any case, the Supplier will make available to the Client, its Subsidiaries and Users the necessary means to not continue receiving communications from the Supplier for the purposes set forth herein.
4. Responsibility of the Parties
Regarding the Services the Client will have the status of data controller and the Data Processor Provider, and therefore the Client will be ultimately responsible for the Client Data. The Supplier in its role of data processor, will act at all times on behalf of the Client and therefore following the instructions of the latter. These Policies, together with the rest of the documents that make up the Contract, are the complete and definitive instructions given by the Customer to the Supplier for the processing of Customer Data.
5. Duration and destination of data processing.
The duration of the processing of Client Data will be the Term of the Contract as determined in the General Terms and Conditions, being the object and the unique destination of the processing of the Client Data, including personal information, for the appropriate Provision of services.
6. Access to Customer Data.
The Provider will allow the Customer access, modification, correction, deletion or blocking of their Customer Data or that such actions are performed by the Provider at the express request and on behalf of the Customer, all during the Term.
7. Ownership of the Client Data
The Client will retain all rights, ownership and interest in the Client Data and therefore the Supplier does not acquire any rights over the Client Data, beyond the rights that the Client grants to the Client Provider for the Services.
8. Personal
data Personal data (understood as those that serve to identify a specific person according to applicable laws) collected through the Services may be transferred, stored and processed in the United States of America or in the Republic from Colombia or in any other country where the Supplier or its contractors have facilities. By using the Services, the Client, its Subsidiaries and Users authorize the transmission of personal data outside their country and agree to obtain the necessary authorization from the people who provide personal data to: (i) transfer that data to the Supplier and contractors; and (ii) allow the transfer, storage and processing of that data.
9. Supplier security infrastructure
The Supplier has and maintains an adequate technical and organizational infrastructure for the protection of Customer Data. This infrastructure consists of but not limited to internal controls and the practice of security protocols designed to protect data against accidental loss, destruction or alteration; unauthorized disclosure or access; or destruction; as well as measures for the encryption of Customer Data. This infrastructure and the measures that it entails are the sole responsibility of the Supplier with respect to the security and handling of Customer Data, as well as with respect to any obligation of confidentiality agreed between the Parties; This statement is expressly accepted by the Client.
10. Security incidents
10.1 In the event that the Supplier has current knowledge and material of illegal access to the Client Data stored in the Supplier’s equipment or infrastructure or any of its subcontractors; or unauthorized access to said equipment or infrastructure; resulting in both cases the loss, disclosure or alteration of Customer Data (“Security Incident”), then the Supplier: (i) will notify the Customer of the Security Incident; (ii) proceed to conduct an investigation regarding the Security Incident, providing the Client with information about the Security Incident; and (iii) take reasonable steps to mitigate the effects and minimize the damage caused by the Security Incident.
10.2The Client expressly accepts that: (i) a Security Incident that does not have the effects detailed in the following paragraph shall not be subject to what is stipulated herein; (ii) Security Incident means that incident which results in
unauthorized access to the Customer Data or to any of the equipment or infrastructure of the Supplier where the Customer Data is stored, including but not limited to , cyber attacks on firewalls or perimeter servers, port scanning, failed login attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not imply access beyond IP addresses or headings) or similar incidents;
10.3 Any notification of Security Incidents made by the Supplier to the Client will be made via email and within a reasonable period of time. On the other hand, it will be the Client’s responsibility to ensure that his network administrators or information technology personnel maintain accurate contact information of the Supplier, as well as constant communications with the Supplier. In any case, the Client is solely responsible for reviewing the Contract and therefore making a decision regarding the contracting of the Services.
D. Service Level Agreement (SLA)
This Service Level Agreement (“SLA”) is signed by the Supplier with the Customer as part of the Contract, as defined in the General Terms and Conditions, regarding the Services.
Through this SLA, the Supplier states that it will make its best efforts to reach and maintain the Service Levels established herein for the Services. In the event that such a task is not achieved, then the Client may request from the Supplier and always at his election, a credit will be granted against the monthly prices of the Services that the Client has contracted (the “Service Credit”). All of the above will be applicable in the case of the first Term. For subsequent renewals, the Client will comply with what is included in the version of the SLA corresponding to the renewal date. The version of the SLA that the Client signed at the time of contracting the Services will be in force until the renewal of the Contract at which time and always if applicable.
1. Definitions
The terms defined here and used in this SLA will have the meaning assigned here both in their singular and plural sense, the rest of the defined terms will have the meaning detailed in the rest of the documents that make up the Contract.
“Applicable Monthly Service Prices” means the total prices that the Customer actually pays for a Service and that apply to the month in which a Service Credit is due.
“Inactivity time”means the total of minutes in a month during which the functionalities of the Services are not available to the Client and therefore the Users, except (i) Scheduled Downtime and (ii) non-availability of Services due to the limitations that They are described in Clause Five below. Likewise, Downtime shall be understood as any period of time as announced at the beginning of this definition in which the Services: (i) are not available according to the measurement in the Supplier’s data centers, provided that according to this Measurement access the Services using access, authentication and tracking methods.
“Incident”means (i) any individual event or (ii) any set of events, which originate Downtime.
“Scheduled Inactivity Time” means the occasions in which the Supplier publishes or notifies the Client of the Downtime periods related to maintenance or network, hardware or Service updates, with at least two (2) business days in advance of the start of said Inactivity Time.
“Service Credit” means the percentage of the Applicable Monthly Service Prices that are paid to the Client after the approval of the claim by the Supplier.
“Service level” means the performance measures that the Supplier agrees to comply with in the provision of the Services, as established in this SLA.
2. Service Level Commitment
The minimum “Monthly Activity Time Percentage” for a Service is calculated using the following formula:
Total number of minutes in a month – Downtime
_______________________________________________ x 100 =
Total number of minutes in a month
If the Percentage of Monthly Activity Time falls below 99% in any given month, you may be eligible for the following Service Credit:
|
Percentage of Monthly Activity Time |
Service Credit |
|
< 99% |
25% |
|
< 95% |
50% |
|
< 90% |
100% |
3. Procedure for the Service Credit claim
In the event that the Provider does not comply with the Minimum Monthly Activity Time Percentage described above for the Services, then the Client may submit a Service Credit claim, which must include: ( i) a detailed description of the Incident; (ii) information regarding the duration of the Downtime; (iii) the number and locations of affected Users (if applicable); and (iv) descriptions of their attempts to resolve the Incident at the time it occurred.
Upon receipt of the claim along with all the necessary information, the Supplier will have a period of eight (8) business days from the date the Incident occurred to respond to the claim. If in the opinion of the Supplier the claim is pertinent then the Supplier will proceed to apply the Service Credit in the account of the following month. In any case to apply the Service Credit, the Client must be complying with this Contract. If the Customer purchased a Service from a reseller, then the Customer will receive a Service Credit directly from their reseller and the latter will receive a Service Credit directly from the Supplier. In this case, the Supplier will determine the amount of the Service Credit issued to the reseller based on the estimated retail price of the applicable Service.
4. Limitations
This SLA and all applicable Service Levels do not apply to performance or availability problems: (i) caused by factors beyond the Supplier’s control; (ii) originated by the Client’s services, hardware or software or the services, hardware or software of a third party; (iii) caused by your use of a Service after the Customer has been notified to modify the use of said Service, if you did not modify its use as notified; (iv) during the use of pre-launch, beta and evaluation services, as well as free or trial services (as determined by the Provider); (v) originated by an unauthorized action or an omission of the Client or its employees, representatives, contractors or suppliers, or of any person who obtains access to the Services with passwords or their Client equipment; or (vi) originated by not complying with the mandatory configurations, not using the supported platforms and not following the AUPs; (vii) for reserved licenses, but not paid at the time of the Incident; and (viii) for interruptions of Services due to third parties with which the Supplier may contract services necessary for the due provision of the Services under this Contract.
The Service Credits are the exclusive and only resource for any performance or availability problem of any Service under the Contract and this SLA which the Client will have. In no case and under any circumstances may the Client unilaterally compensate for any availability problem with the Applicable Monthly Service Prices.
5. Exceptions
Those times during which the Services are not available to the Client and in accordance with the following assumptions shall not be understood as included in the definition of Inactivity Time: (i) when the Client, the Users or their Affiliates do not have access to internet for any reason; (ii) by the application of security policies and protocols of the Client’s network that do not allow access to the Services; (iii) when the browser version of the Client, Users or its Affiliates is not compatible with the software requirements of the Services; (iv) and when the Services are not available for reasons
attributable to Supplier contractors and that provide services to the Supplier necessary for an adequate provision of the Services;
